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Lasers - Applying a Blow Torch

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Redstar, you yourself just explained how the rule change was intended to be of 'benefit' to LP - it was because (or at least this is what they were saying) the rule change allowed them to continuing building Lasers.


This is supported by LP pushing the ILCA to make the rule change.

 

That being said, it would appear that the rule change made no difference to LP, as they continued building Lasers before the rule change was made in April 2013.

 

I agree that the rule change has had no impact - there is plenty of evidence to support that. Rastegar considered his contract with Kirby void - the problem was (and is) that the ILCA came out in 2011 in support of that statement. According to Kirby, Rastegar and/or Laser Performance encouraged the ILCA to enact the rule change and encouraged the ISAF to enact it. This was denied by Rastegar & Co.

 

This is outlined in points 80 to 85 of Kirby's amended civil action, a section entitled "ILCA Rule Change" (page 15).

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Do I get NO CREDIT what so ever for my analogy???

Sheesh

Freaking awesome dude!

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Redstar, you yourself just explained how the rule change was intended to be of 'benefit' to LP - it was because (or at least this is what they were saying) the rule change allowed them to continuing building Lasers.

 

This is supported by LP pushing the ILCA to make the rule change.

 

That being said, it would appear that the rule change made no difference to LP, as they continued building Lasers before the rule change was made in April 2013.

 

I agree that the rule change has had no impact - there is plenty of evidence to support that. Rastegar considered his contract with Kirby void -

Sorry, but this misses a key point. Before the rule change, the ILCA had ceased to supply LP with builders plaques, on instruction from ISAF. I don't know about you, but I wouldn't buy a boat claiming to be a Laser that didn't have a builders plaque. So, without the rule change, LP wouldn't have been able to sell class approved boats.

 

If the class had been serious about sorting out this mess, they would have left the rules alone. That would have forced LP to act, either to agree with BK or gain an injunction that allowed them to keep getting builders plaques. In that way, the court would have decided if LP was entitled to build class legal Lasers. Instead, the class changed the rules. The remedies were there for LP, if they were in the right. The class didn't need to do anything.

 

If it made no difference to LP and they didn't gain out of it, why did they excerpt so much pressure on both the ILCA and ISAF to change the rule? Why did they hold a gun to both parties to get the change? If it made no difference and wasn't important, LP would have behaved differently. Instead, it is clear that Rastegar has committed a fair amount of money from his corporate empire to ensure he stays sweet with the ILCA and ISAF. Anybody who thinks he did that out of the goodness of his heart, love of the class etc needs to stop posting on here and look for the Disney Channel, or start reading fairy tales and taking them as fact as well.

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Sorry, but this misses a key point. Before the rule change, the ILCA had ceased to supply LP with builders plaques, on instruction from ISAF. I don't know about you, but I wouldn't buy a boat claiming to be a Laser that didn't have a builders plaque. So, without the rule change, LP wouldn't have been able to sell class approved boats.

 

What you are saying is correct, but that was only the case for one month, after Kirby had started the civil action and well after the rule change was proposed and voted on in 2011.

 

The timeline for the plaques being stops goes like this:

March 25 2013 - ISAF halts the plaques via a letter to Jeff Martin

April 23 2013 - ISAF approves the rule change.

 

Prior to that, the ILCA were issuing plaques and were advising Kirby of the plaques they released. After the change the plaques were planned to be released without the Kirby name.

 

Did Laser Performance halt production at any time? When?

 

Kirby indicates how central the ILCA / ISAF are to this when he said 24 April 2013:

"I have tried to work with ILCA and ISAF on rebranding the boat, but they refused and demanded instead that I get a Court Order. So they are named in the lawsuit. After filing of the lawsuit, ISAF initially asked ILCA to stop issuing ISAF plaques to Laser Performance, but I don't yet know if ILCA complied. In a new twist,ISAF and ILCA now seem prepared to issue a new version of the plaque to Laser Performance which removes my name from my own design. This is not only against the Laser Construction Manual which ISAF and ILCA claim to hold Builders to, thereby

insuring a true one-design class, but also reveals their true strategy to steal my design. The irony in all of this is that by continuing to provide plaques to Laser Performance against my wishes and our contracts, both ISAF and ILCA continue to collect money from Laser Performance for every boat made even while I am not being paid the design royalty."
Now, Kirby is definitely using strong language, about 'them' stealing his design - he released this statement just after the ISAF approved the rule change - which had to hurt.
However, there are agreements - and the lawsuit is very real - which appears to have passed the first hurdle in the court proceedings and has moved into the discovery phase.
As Tracy Usher indicated, there is an intention to settle this matter out of court and move forward. We have heard that from Kirby, from the ILCA but significantly not from Rastegar. Kirby is proposing to move forward by renaming the boat - a very valid suggestion that seems to be rejected by both the ILCA and ISAF. Perhaps they have a better way of settling out of court - I hope so. I hope Tracy Usher is correct as he states in the latest issue of Laser World and that a solution is found very soon.

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Gouv I LIKED your analogy...

 

Gannt the ILCA meeting notes you cite do not necessarily indicate a lot of 'behind the scenes" stuff going on. Those notes are 100% consistent with the email threads and Heinrich BELIEVING commitments had been made by LPE when in fact those "commitments" were weasel worded in a way as to allow LPE to walk away from them at will. Remember Rastegar doesn't get an correcting edit pass on the ILCA notes.

 

The ILCA notes reflect the UNDERSTANDING of the situation by Heinrich et. al. An understanding that the exhibits show was... shall we say ... "incomplete"?

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Redstar, you yourself just explained how the rule change was intended to be of 'benefit' to LP - it was because (or at least this is what they were saying) the rule change allowed them to continuing building Lasers.

So it allowed the existing situation to continue. That's not a benefit, it's a lack of a negative impact. Very different.

 

You own a laser. I think about stealing it (a negative impact for you). If I decide not to steal it after all, am I benefitting you? No, of course not.

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Gouv I LIKED your analogy...

 

Gannt the ILCA meeting notes you cite do not necessarily indicate a lot of 'behind the scenes" stuff going on. Those notes are 100% consistent with the email threads and Heinrich BELIEVING commitments had been made by LPE when in fact those "commitments" were weasel worded in a way as to allow LPE to walk away from them at will. Remember Rastegar doesn't get an correcting edit pass on the ILCA notes.

 

The ILCA notes reflect the UNDERSTANDING of the situation by Heinrich et. al. An understanding that the exhibits show was... shall we say ... "incomplete"?

 

 

I agree BlaticBandit that the meeting notes in themselves indicate that there was 'a lot' - but they do indicate there was something going on...

 

Perhaps it's time for a recap:

 

This case revolves around the validity of the contracts - and the idea of whether or not the builders contracts were terminated prior to 2011. That idea was put forward by Rastegar and Co, who then acted as if it was so, then convinced the ILCA to propose a rule on that basis. Note that we now know, having had the opportunity to read the builders agreements, that it had in it provisions to transfer - I am unclear on what basis the obligations of any parties to the contract have been released - this is a matter that to date Rastegar has not dealt with effectively. Kirby says that the transfer to Global Sailing was not effected properly, and that the agreement that Rastegar was still valid until 2013 when he terminated the contracts.

 

I believe that, in accordance with the contracts, it is up to Kirby to appoint builders. It is up to other parties, including the Trademark holder, to ratify the appointment of builders. Because the holder of the Laser Trademark is Rastegar, he effectively has right of veto for the North American, European and possibly some Asian markets. This is the bind that keep us all from moving forward. It's very unfortunate that things have reached this point - but it is a bind never the less.

 

Enter the ILCA and the ISAF. Unfortunately (at least for Kirby), they don't see it the same way that he does, and would rather have Rastegar continue building boats, until this mess is sorted out. Unfortunately, in giving Rastegar support, there will be no 'sorting out' outside of court, as any move different to the situation now is a compromise for Rastegar. This is because at the moment Rastegar gets to build Lasers without paying royalties. Also, if we recognize Kirby's rights, then Kirby's termination of Rastegar's companies (Laser Performance) may be effected. These two facts prevent Rastegar from engaging in any mediations in a meaningful way.

 

It's my judgement that the ethics favour Kirby, however if I set those aside, I still end up favouring Kirby's position. Bottom line for me is that I sail a particular boat design. I love all of the boats being the same and that I do battle with other sailors, not with differing technology. That being said, I cannot bear the design of the boat to change, while I can bear the trademark to change.

 

To me, there are two options:

1) Buy the Laser Trademark off Rastegar and appoint a new builder.

2) Sail the same boat under a different trademark.

 

Unfortunately for Rastegar, both of these options do not include him or his companies building 'our boat' - if it is Kirby's will (and it is). That is because I respect the rights of Bruce Kirby to appoint builders as laid out in the various contracts that I see are still valid. These are the same contracts formulated the enormously successful 'Laser system'. Over and above this, Kirby was a significant part (but not the only part) of the creation of the sport I have enormous passion for. Without Kirby, there would be no Laser. The same cannot be said for Rastegar.

 

In order to change the name of the Laser, the process of change needs to be over several years - mostly because there are already agreements in place with the ISAF for Laser Performance to build Lasers. However being a longer time scale also presents an opportunity to look in depth at the system that we have, and for the stakeholders to discuss what improvements can be made to the rights. If for example, there is to be a new trademark, (from the top of my head) I'd like to see the stakeholders buy into it (is there something better than the Torch?), have a robust discussion on where the trademark ownership is best held for the good of the class so there is no possibility of a similar bind in the future. Also there is Kirby's desire to do some 'estate planning'. Again, it is the stakeholders where these things need to be discussed - how the system will best run without Kirby - how to arrive at market values of the assets (like the 'design rights', the trademark rights etc) then how the transfer of rights is best effected without seeing any party out of pocket.

 

Again, the ILCA and the ISAF play a pivotal part in this.

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Perhaps it's time for a recap:

 

 

I believe that, in accordance with the contracts, it is up to Kirby to appoint builders. It is up to other parties, including the Trademark holder, to ratify the appointment of builders.

 

Perhaps it would be helpful to have an accurate recap.

IMO

 

1. Anyone can build the Kirby/Ian Bruce sailboat with or without the permission of Ian Bruce or Bruce Kirby.

2. Only the trade mark holder can build such boat and call it a Laser.

3. Only ILCA and ISAF can approve builders to build boats that can be raced in class events

 

There also exists an agreement where Kirby, ILCA, ISAF and the trademark holders agreed a schedule of builders and agreed that any change in the builders would require the agreement of all parties and one clause of that agreement suggests that the trade mark holder is a builder by definition. However there are currently no claims in front of the CT court claiming that this agreement has been breached and it would present an interesting jurisdiction conundrum if such claim were made.

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Again, perhaps we can be a bit more objective here.

 

These two facts prevent Rastegar from engaging in any mediations in a meaningful way.


Again, the ILCA and the ISAF play a pivotal part in this.

 

The court submissions state that Laser Performance/Rastegar agreed to mediation but BK/Global Sailing declined to participate in mediation. We have no further information than that.

 

 

 

In theory, could ISAF/ILCA put pressure on Global Sailing to participate in mediation? Yes. Global Sailing builds at least one other major ISAF class for junior events. However if ISAF or ILCA did anything more than strongly recommend to Global sailing that they sit round the table in a mediation process, they could expose themselves to a claim of Tortious Interference.

 

Global Sailing has to decide on their own accord if the best interests of sailing are served by participating in mediation. My personal opinion is that this would be in the best interest of Laser sailors, but I also think that the parties have to bruise each other a bit in court before they are ready to sit down and find a compromise.

 

 

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IPL,

 

It is naive or disingenuous of you to believe the LP court submission that Global Sailing have refused all attempts at mediation. It is clear from the e-mail trail that Rasteger declined to attend meetings at which all parties would have been present.

 

I also disagree that anyone can build the Kirby sailboat, as you state. You could have a go at building something similar, but you couldn't use the construction manual as it is not publicly available. Without this, you are guessing at the resin type, ratios etc.

 

It looks like one of Rastegar's companies didn't stump up the money/boats that had been promised to the ILCA for the Argentina Worlds. ILCA then sought to get the missing boats from PSA and Rastegar threw a fit as this breeched territorial rights. Prior to this Rastager had also stopped paying royalties due. He also set up a Laser Union as a rival to the ILCA. It is hard to find a redeeming feature in his actions.

 

Is it just me that thinks it is a fundamental flaw that the ILCA has a say in what constitutes a Laser?

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What is clear to me is that:

 

Kirby - is a nice guy

Rastegar - is an ass

Heini - is naive

Jeff Martin - is playing both sides of the fence and probably already has a job with the LP Union

ILCA - are pawns

GS - are businessmen

Laser sailors -are screwed for a few years

 

There is no way a settlement or court ruling will remove the ass from the picture and with the ass in the picture, it's going to remain a bumpy ride. Even if everything is resolved this time around, the ass will rear his ugly butt yet again. Please someone with deep pockets, buy out the ass and remove him from the game.

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IPL,

 

It is naive or disingenuous of you to believe the LP court submission that Global Sailing have refused all attempts at mediation. It is clear from the e-mail trail that Rasteger declined to attend meetings at which all parties would have been present.

 

I also disagree that anyone can build the Kirby sailboat, as you state. You could have a go at building something similar, but you couldn't use the construction manual as it is not publicly available. Without this, you are guessing at the resin type, ratios etc.

 

It looks like one of Rastegar's companies didn't stump up the money/boats that had been promised to the ILCA for the Argentina Worlds. ILCA then sought to get the missing boats from PSA and Rastegar threw a fit as this breeched territorial rights. Prior to this Rastager had also stopped paying royalties due. He also set up a Laser Union as a rival to the ILCA. It is hard to find a redeeming feature in his actions.

 

Is it just me that thinks it is a fundamental flaw that the ILCA has a say in what constitutes a Laser?

Sosueme.

 

I'm sorry if you think my post was anything less than objective and factual.

 

Gantt was suggesting that Rastegar was unwilling to participate in meaningful mediation. I am no fan of Rastegar. Rastegar doesn't seem like an easy person to work with. However I thought Gantt's post was riddled with inaccuracies, so I tactfully pointed out that in a submission to the court constituting a statement under oath, Rastegar had agreed to mediation and stated that BKI/Global sailing had declined.

 

FWIW, I'm guessing that Rastegar was not too happy about submitting to mediation but succumbed to pressure from ISAF/ILCA.

 

The point is that LP/Rastegar is now under oath as agreeing in principle to participate in mediation. The ball is in GS/BKI's court.

If GS/BKI think they have a strong case, then they may want to rough up Lp/Rasetegar in court for a bit first before they agree to a settlement process. Whatever went before, and whatever is your interpretation of the limited discovery so far...the opportunity to participate in mediation now lies squarely with GS/BKI.

 

Its my read of events that GS/BKI wants to go a few more rounds in the legal ring first.

 

It may be that ILCA/ISAF continue to recommend and diplomatically "encourage" GS to participate in some kind of mediation but they have to tread very carefully in those efforts.

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Hi IPL,

 

No offence intended, but you painted a picture that makes Rastegar look like a long suffering man who has tried to resolve these issues in an amicable manner. It seems to me that BK has made more attempts to talk to Rastegar than the other way around. Rastegar even sent a personal email telling Kirby to conduct all future communication through lawyers. Doesn't strike me that that is the action of a man holding the high ground on finding a resolution for the common good.

If Rastegar has now obliged himself to attend mediation, I am surprised BK has not taken this up, unless he feels that Rastegar's wouldn't honour his promises. I can't imagine BK wants to go the legal route as first option.

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No offence taken.

 

It certainly doesn't look as if Rastegar is a long suffering man with an amiable temperament.

 

Hi IPL,

No offence intended, but you painted a picture that makes Rastegar look like a long suffering man who has tried to resolve these issues in an amicable manner. It seems to me that BK has made more attempts to talk to Rastegar than the other way around. Rastegar even sent a personal email telling Kirby to conduct all future communication through lawyers. Doesn't strike me that that is the action of a man holding the high ground on finding a resolution for the common good.
If Rastegar has now obliged himself to attend mediation, I am surprised BK has not taken this up, unless he feels that Rastegar's wouldn't honour his promises. I can't imagine BK wants to go the legal route as first option.

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IMO Bruce Kirby's email to Rastegar on October 3rd 2011 seems very ill advised.

 

Rule #1 : Don't send personal emails to the other party.

Rule #2 : If you wish to reach out on a personal basis, set up a meeting where you can talk "without prejudice" or have a phone call, and check what you are going to say with your attorney.

Rule #3 : If you insist in sending written communication, have the draft carefully reviewed by your attorney.

 

That was not an email that is going to help Kirby.

 

Rastegar is not exactly a man of prose , is he?

 

I'm off to do some yard work that I promised the wife. Enjoy your further discussions.

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Scene, similar to M*A*S*H, - American soldiers, dressed for the war, helicopters etc.

 

Sergeant Usher: (Loud voice, cigar, sorting through letters): "Martin! Dobson! Rastegar!"

 

Rastegar opens an envelope, inside is a cassette.

 

Rastegar: "It's from Bruce, we gonna build his design for the Olympics!

 

Rastegar puts the tape in a player, presses play.

 

Kirby (Voice Singing)

"Dear Faraz,

Oh how I hate to write,

Dear Faraz,

I must let you know tonight,

That support for you has gone,

So I'm sending you this song,

We using another builder,

You'll like them Faraz, it's your mother,

so adieu to you forever,

Dear Faraz..."

 

Sergeant Usher: "Play it again Faraz."

 

Original NZ advert:

 

Guys, it's time to move forward, I'm not sure it going to be with Rastegar in the medium to longer term.

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Perhaps it's time for a recap:

 

 

I believe that, in accordance with the contracts, it is up to Kirby to appoint builders. It is up to other parties, including the Trademark holder, to ratify the appointment of builders.

 

Perhaps it would be helpful to have an accurate recap.

IMO

 

1. Anyone can build the Kirby/Ian Bruce sailboat with or without the permission of Ian Bruce or Bruce Kirby.

2. Only the trade mark holder can build such boat and call it a Laser.

3. Only ILCA and ISAF can approve builders to build boats that can be raced in class events

>>>>3a - under current ILCA rules only builders with legal access to using Kirby's "Construction Manual" can build boats that can be raced in Class Events

 

There also exists an agreement where Kirby, ILCA, ISAF and the trademark holders agreed a schedule of builders and agreed that any change in the builders would require the agreement of all parties and one clause of that agreement suggests that the trade mark holder is a builder by definition. However there are currently no claims in front of the CT court claiming that this agreement has been breached and it would present an interesting jurisdiction conundrum if such claim were made.

You left out a piece

 

As a result

If GS/BKI think they have a strong case, then they may want to rough up Lp/Rasetegar in court for a bit first before they agree to a settlement process. Whatever went before, and whatever is your interpretation of the limited discovery so far...the opportunity to participate in mediation now lies squarely with GS/BKI.

 

Its my read of events that GS/BKI wants to go a few more rounds in the legal ring first

I think makes a lot of sense. These Exhibit disclosures make Rastegar look like a real ass and quite mendacious, thus a few more rounds of them and the GS/BKI may feel the ILCA might start weighing in with them on what a fair mediation outcome looks like.

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Yup. Resolution could happen before you read this.

 

I guess you are referring to Tracy's comment - I wonder if he was aware of talks / negotiations that he had possibly agreed not to write about... anyhow, it would seem that Kirby doesn't want to give up his royalties or authorities, Rastegar is happy not to pay any and the ILCA wants to support Laser Performance producing Lasers (via the rule change and the plaques).

 

There really hasn't been any news from anyone since the end of July...

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Maybe the post office delivered the newsletter faster than predicted??

Ha. Maybe - though I get mine via the ILCA website... it's that or I have to wait for it to strapped to the back of a turtle and sent to the southern seas...

 

...the reality is that there are actually quite a few solutions, and they all involve radical change in one form or another... I think a valid solution is to try to buy out Rastegar... though it's likely he's want top dollar for Laser Performance / the laser trademark... does anyone know how much the companies value?

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interesting, psa foiling release mentions new full size radial sail availability

 

Where? I have just visited their Website / Facebook page and can't see any mention of it??

 

Don't think PSA are actively promoting the Torch just yet... the options that the ILCA have forced on those not in support of Laser Performance is to build a replacement ILCA or wait for the court to do its thing. I'm thinking that Kirby supporters, and that includes PSA, are leaning towards waiting, though what Tracy is implying is that negotiations are continuing behind the scenes...

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What Tracy wrote is this in Laser World:

At the time of this writing and as it seems these things go, the situation, as they say, remains rather fluid. ILCA and ISAF have met with Bruce Kirby and his representatives to discuss the situation and possible solution and we have been continuing a dialog aimed at getting all parties to the dispute to the table to find a final solution. ILCA is optimistic that a solution is going to be found and in the ideal case by the time you read this article the dispute may well be over.

 

I'm unclear when that was written - but it was released 1 August 2013.

 

All I meant by behind the scenes is that it is not visible to me / us.

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My hope is that it will all be over earlier, though looking at it more objectively by 2017. LP has supply contracts that go to the Olympics...

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check the foiling laser thread in SA/SA, there is a report with pictures referring to new radial sail

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Found two threads on foiling lasers on SA. One has pictures of fat women. On the other one, the radial sail is mentioned once - but only in passing. Bruno, can you please provide a link?

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There is a whole lot of hoops that they need to jump through before being 'class official'... and I wonder if there will be a new foiling laser class... etc etc...

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Dunno much about the laws here but my guess is the holder of the Laser copyright coule rotest that copyright by communicating teh following:

 

 

There is no such thing as a foiling Laser. A toy that does not meet very specific Builder's Manual specifications in not a Laser. In fact:

A toy belonging to someone who is not a a member in good standing of ILCA is not a Laser.

A toy is not a Laser if it does not currently have its mast rention system rigged.

A toy is not a Laser unless it has whatever plaques and stickers are described in the Builder's Manual.

A toy is not a Laser unless its sail has proper numbers properly applied.

A toy is not a Laser unless any payments described in the Builder's Manual have been paid to whomever the Builder's Manual says those payments must be paid.

 

In fact, unless the owner of the copyright vigorously defends against use of the trademarked Laser name for such generic use as filing toys and other generic boats not described in the Builder's Manual, reasonable people could easily assume and make a legal case the Laser trademark is no longer descriptive ONLY of a certain specific product and the special rights to exclusive use may well be terminated.

 

 

Does anyone know if any of the above is correct??

Not quite - I think that someone can easily claim to have developed an add on product for a Laser - see Seitech's dinghies, various boat covers and compass mounts etc.

 

In fact though IANAL - given how vigorously Disney an others (like Xerox) have pursued Trademark and Copyright protection lest they lose the right to exclusivity - I suspect that it could well be possible to introduce decades of APS and Layline catalogs with Seitech and other "Laser" products where there was

NEITHER

  • Official permission to use the term Laser
  • Pursuit of TM protection by legal defense means

so that the term "Laser" can be argued to have lost protectable Trademark status

 

So you absolutely CAN market a set of aftermarket products for "The Laser" which may or may not be class legal for racing in "Laser" sanctioned events

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But we still don't know what the hell is going on between our class, ISAF, Kirby, and the builder.

 

We do not have any rights to control Kirby or the builders.

 

But...

 

At what time did the ISAF and or the ILCA become organizations whose constitutions included covert activities???!!

The moment they were incorporated.

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http://www.archive.org/download/gov.uscourts.ctd.99988/gov.uscourts.ctd.99988.77.0.pdf

 

Some excerpts:

 

 

A. STATUS OF THE CASE

 

GSL and PSPL have not been served or appeared and have not responded to LP

Europe and Quarter Moons Counterclaims. Counterclaim plaintiffs LP Europe and

Quarter Moon have requested waivers of service from GSL and PSPL under Rule 4

(d) and the period for return of the waivers has lapsed.

 

 

B. INTEREST IN REFERRAL FOR SETTLEMENT PURPOSES

 

ISAF is willing to refer this matter for settlement purposes to a United States

Magistrate Judge or the District Courts Special Masters Program.

 

ILCA will agree to participate in mediation before a Magistrate or a Special

Master once all parties have joined the litigation.

 

At this time, none of the other parties are interested in referral for

settlement purposes to a United States Magistrate Judge or the District Courts

Special Masters Program.

 

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For me, it's difficult to get my head entirely around the concept that the counter claims have involved other parties. Reading the document, and given the weight the defence places on jurisdiction, it's a little ironic that the counter claims against New Zealand and Australian based entities require an even greater 'leap' in terms of jurisdiction.

 

Personally, my hope is that Performance Sailcraft and Global Sailing both comply, and present the facts. I'm fairly confident that presentation of the facts would strengthen, and not weaken Kirby's position.

If they have not been served, then it reflects poorly on those whose responsibility it is to serve - though should not stand in the way of progressing this - after all, in Performance Sailcraft and Global Sailing you will find people who have a long-standing positive commitment to the Laser class.

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Flying bridge for sale.

 

Details available for 20% deposit.

 

Thought I might find some takers here.

 

:D

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http://www.archive.org/download/gov.uscourts.ctd.99988/gov.uscourts.ctd.99988.77.0.pdf

 

Some excerpts:

 

 

A. STATUS OF THE CASE

 

GSL and PSPL have not been served or appeared and have not responded to LP

Europe and Quarter Moons Counterclaims. Counterclaim plaintiffs LP Europe and

Quarter Moon have requested waivers of service from GSL and PSPL under Rule 4

(d) and the period for return of the waivers has lapsed.

 

 

B. INTEREST IN REFERRAL FOR SETTLEMENT PURPOSES

 

ISAF is willing to refer this matter for settlement purposes to a United States

Magistrate Judge or the District Courts Special Masters Program.

 

ILCA will agree to participate in mediation before a Magistrate or a Special

Master once all parties have joined the litigation.

 

At this time, none of the other parties are interested in referral for

settlement purposes to a United States Magistrate Judge or the District Courts

Special Masters Program.

 

Thanks for the update. Slow progress but progress nonetheless.

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Personally, my hope is that Performance Sailcraft and Global Sailing both comply, and present the facts. I'm fairly confident that presentation of the facts would strengthen, and not weaken Kirby's position.

 

If they have not been served, then it reflects poorly on those whose responsibility it is to serve - though should not stand in the way of progressing this - after all, in Performance Sailcraft and Global Sailing you will find people who have a long-standing positive commitment to the Laser class.

 

The joint status report is already a month old and its hard to garner much insight, but at that time progress has not been fast track. Neither party has submitted discovery requests or interrogatories. Performance Sailcraft/Global sailing have declined to waiver service (Gannt....it doesn't reflect poorly on anyone. GS is a corporation, they have received the counter claims. It is their choice whether they want to waiver formal service or if they want to slow things down a bit by insisting on formal service). I'm guessing that if this goes to trial I will have to move my original estimate of 2 -3 years before trial commences to the longer end of that estimate and maybe even 3+ years.

 

I hope that some are beginning to see the wisdom of the Laser Class Association (and the Laser owners that supported their Class Association) in deciding to maintain the builders' status quo until the legal situation is resolved. Boats are still being built and sold and sailed while the wheels of justice slowly turn. Even if BK wins, he will be better off as a result, because the Class will be alive and well.

 

Section B is the most interesting part of the status report :

 

ISAF and ILCA are prepared to submit the case to an Alternative Dispute Resolution (ADR) process to either a Magistrate or Special Masters. ICLA makes it conditional on (1) All parties participating. So Global Sailing have to be there. (2) It has to be mediation. Arbitration would be limited to the case in hand. Its possible/probable ILCA might want to insist on long term settlement conditions that go beyond the current dispute.

ISAF has less specific conditions but they also seem to envisage mediation as opposed to arbitration because they use the language "refer this matter for settlement purposes".

 

Interestingly, LP did not agree to this. Previously they have submitted to the court that they are open to settlement discussions. Currently they have balked at a court supervised process as proposed by ISAF and ILCA. GS/BK have not shown willing to participate in any ADR so far.

 

It will be very interesting to see how this develops. My bet (which is purely a guess that is not based on any legal expertise or any insight on the parties) is that both LP and BK/GS eventually succumb to ISAF and ILCA proposals that this is resolved by ADR.

 

ISAF will have to play their hand very carefully in this process. I suspect that they could put significant pressure on both parties to join ADR. They have already shown GP/BK what happens when you call ISAF's bluff, when they passed the rule amendment. One suspects GS received that message loud and clear. BUT they cannot be seen to apply inappropriate pressure because that could raise all sorts of legal issues.

 

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Still going, and Rio getting closer, not to mention the rest of us waiting for the promised new stuff.

For me, I am losing interest, ready to move on, not enough peers in my area active so why bother?

For thg ISAF they should cut their losses, declare the OK for 16 and distance themselves.

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[snip]

I hope that some are beginning to see the wisdom of the Laser Class Association (and the Laser owners that supported their Class Association) in deciding to maintain the builders' status quo until the legal situation is resolved. Boats are still being built and sold and sailed while the wheels of justice slowly turn. Even if BK wins, he will be better off as a result, because the Class will be alive and well.

 

Section B is the most interesting part of the status report :

 

ISAF and ILCA are prepared to submit the case to an Alternative Dispute Resolution (ADR) process to either a Magistrate or Special Masters. ICLA makes it conditional on (1) All parties participating. So Global Sailing have to be there. (2) It has to be mediation. Arbitration would be limited to the case in hand. Its possible/probable ILCA might want to insist on long term settlement conditions that go beyond the current dispute.

ISAF has less specific conditions but they also seem to envisage mediation as opposed to arbitration because they use the language "refer this matter for settlement purposes".

 

Interestingly, LP did not agree to this. Previously they have submitted to the court that they are open to settlement discussions. Currently they have balked at a court supervised process as proposed by ISAF and ILCA. GS/BK have not shown willing to participate in any ADR so far.

 

It will be very interesting to see how this develops. My bet (which is purely a guess that is not based on any legal expertise or any insight on the parties) is that both LP and BK/GS eventually succumb to ISAF and ILCA proposals that this is resolved by ADR.

 

ISAF will have to play their hand very carefully in this process. I suspect that they could put significant pressure on both parties to join ADR. They have already shown GP/BK what happens when you call ISAF's bluff, when they passed the rule amendment. One suspects GS received that message loud and clear. BUT they cannot be seen to apply inappropriate pressure because that could raise all sorts of legal issues.

 

Well said. Was sorry to see LP bail/reverse course on ADR. Thought mediation or arbitration (w 3 of 4 parties pushing for it) would eventually force BK to table and both LP and BK to find middle ground. Looking more and more like both BK and now LP want to take it to the mat. Shame.

 

Cap remains tipped to ILCA and ISAF for supporting middle ground and the steps taken to keep the class intact.

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IPLore, on 24 Sept 2013 - 01:59, said:snapback.png

I hope that some are beginning to see the wisdom of the Laser Class Association (and the Laser owners that supported their Class Association) in deciding to maintain the builders' status quo until the legal situation is resolved. Boats are still being built and sold and sailed while the wheels of justice slowly turn. Even if BK wins, he will be better off as a result, because the Class will be alive and well.


Imagine how motivated LP / Rastegar would be if the ISAF/ILCA did not approve boats built by LP as Lasers? Both parties had an agreement with Kirby to only approve boats made by Kirby approved builders, an agreement which Kirby says they have broken. Perhaps there is a possibility that by approving LP boats as Lasers has contributed to this matter being resolved slowly BECAUSE is favours LP / Rastegar.

IPLore, on 24 Sept 2013 - 01:59, said:snapback.png

Interestingly, LP did not agree to this. Previously they have submitted to the court that they are open to settlement discussions. Currently they have balked at a court supervised process as proposed by ISAF and ILCA.


This is not surprising. LP has a good situation - no royalties to pay in the short term, though looming large is the possibility that they will no longer be able to continue as Laser builders. I assume LP are building Lasers at a profit. An ADR would speed up a process and result in the three main possibilities:

  • LP loses the right to build Lasers
  • LP maintains the right to build Lasers but need to pay royalties
  • LP maintains the right to build Lasers and do not need to pay royalties

If the 2nd option is selected, they can wind up LP and restart as a different entity forcing Kirby to engage again

If I were LP I would keep as far away from any alternate dispute resolution as possible - all they need to do is say - hey look - there already is a legal process in place to sort it out - we're going with that...

Unfortunately, the ISAF and ILCA are supporting this situation by 'maintaining the status quo' of LP as a builder.

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[the court] found Optiteam and Nautisch Centerum Delfzijl guilty of trademark infringement, ordered the defendants to immediately cease infringing and fined them for procedural expenses.

 

I think that's just a slap on the wrist, nothing in it for LP. The article was written by LP, so if that's the best they can do they didn't have much of a win.

 

Also seems to be irrelevant in regard to Kirby vs LP et al.

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What to me is interesting is that while the goods came from PSA, it seems that LP didn't go after them. I suspect they would have if there had been evidence that PSA was trying to get a foothold in their territory. All told, little to do with the big case between Kirby and LP

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"This manner of conduct should equally be a point of concern for the International Sailing Federation and the International Laser Class Association since it diverts attention from the development of the Class and Laser sailing."

 

Harming the class by importing parts that LP has failed to provide?

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I suspect they would have if there had been evidence that PSA was trying to get a foothold in their territory. All told, little to do with the big case between Kirby and LP

Dunno Simon, what would LP be able to go after PSA for? Seems to me that the only protection for LP is their trademark, and AIUI that isn't going to protect them from anyone ordering something out of area, it only protects them from anyone using the trademark in their area.

What it does demonstrate is toxic relations in Laserland, but we knew that!

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Like winning the practice race, early success is not always a good sign you will do well in the championship.

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"This manner of conduct should equally be a point of concern for the International Sailing Federation and the International Laser Class Association since it diverts attention from the development of the Class and Laser sailing."

 

Harming the class by importing parts that LP has failed to provide?

Read it. Imported boats. A pretty blatent a violation.

 

Has nothing to do with the BK lawsuit other than to again show the extent of the disfunctional relationship between PSA and LPE. The day BK sold "rights" to PSA the dogs of war were set loose and it was just a matter of time.

 

Sailors and the class stuck in the middle.

 

Be interesting to reconnect w my Laser friends for winter frostbiting and hear what is up.

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[the court] found Optiteam and Nautisch Centerum Delfzijl guilty of trademark infringement, ordered the defendants to immediately cease infringing and fined them for procedural expenses.

 

 

Also seems to be irrelevant in regard to Kirby vs LP et al.

 

The possible legal relevance is this;

 

BKI's claim for fees and royalties is based on a contract. This same contract also provided the other party (LP in this case) with exclusive rights to a territory. At the time, BKI was owned by Global Sailing (GS) which in turn owned PSA.

 

LP's counter claim asserts that GS terminated the contract in writing.

 

If GS/BKI/PSA sold boats to dealers in a territory that was previously the exclusive territory of LP

(I) This may be evidence to support the claim that GS considered that the contract had been terminated.

(II) It could provide LP with the equitable defense of estoppel under the "unclean hands" doctrine for any equitable remedy that BKI seeks. (They are seeking to enforce a contract which they have breached)

(III) It adds to the tapestry of evidence suggesting that GS had been trying to increase its territory and may have acquired BKI for that purpose.

 

 

It is certainly not helpful to BKI/GS. On the other hand, I doubt it is a "turning point" in the case. Without ADR, this is going to drag on for a long time.

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On one hand LP say that they do not need to pay royalties because the contract they have is (was) no longer valid.

 

With the other hand, LP say that their territorial rights have been breached in Europe, yet a fundamental part of their having a territory is the same contract they said was no longer valid.

 

So while it appears to support LP's claim about PSA selling into Europe, though in doing so, it may also show LP's recognition for the contract that they are trying to disown - that gave them their territory in the first place and the same one that requires them to pay royalties.

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Gantt

You have it all wrong. LP's rights to territory come from owning copyright in that territory. The parts were being sold as Laser parts and/or had the sunburst logo on them. As such, that was a clear breach of the copyright, because the denders in the case did not have LP's permission to use their IP.

 

IP Lore

 

Sorry, but you are barking up the wrong tree. First, there is nothing to stop PSA supplying laser and laser branded equipment to anybody in their own territory. Once sold, PSA cannot be held responsible for what happens to that equipment. If the purchaser decides to export it to another territory, that's down to the purchaser.

 

The issue I raised is simple. LP have made claims that PSA/GS were trying to muscle into their territory. On the surface, this might be an example of this. However, if it were, LP would have joined PSA into their case. Clearly, we can deduce that because this didn't happen, there is no evidence that PSA was involved in this case and that in this situation, PSA was not trying to muscle in on LP's territory.

 

What seems clear to me is that the equipment in question is what is known as "grey imports", done without the support of the manufacturer. If GS/PSA had been involved in any way, LP would have used it as part of their ongoing dispute. IMO, the very fact they didn't shows us that LP has no evidence to support the idea that PSA was using this as a way of breaking into their territory. It also suggests to me that the LP position on PSA trying to break into their territory is, at best, very sketchy and has little or no legally provable facts to support it, because if there were, where is the court case. I don't believe that it stacks up that they would take action against one party but leave the big fish alone.

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Trademark, not copyright Simon as you know, but it's a vital distinction.

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Gantt

You have it all wrong. LP's rights to territory come from owning copyright in that territory. The parts were being sold as Laser parts and/or had the sunburst logo on them. As such, that was a clear breach of the copyright, because the denders in the case did not have LP's permission to use their IP.

 

I'd agree, were it so straight-forward. I'm sure you are not saying that all of LP's distribution (territory) rights come from having the Laser Trademark. Note that Copyright and Trademark are different and are not interchangeable. I'm not so confident I've got it so wrong. Is it possible you missed my point?

 

The inference behind the LP release when they say things like:

LaserPerformance is pleased with the outcome and grateful to the Court for recognizing the blatant attempt to illegally import and distribute illegal Australian Laser products into Europe. LaserPerformance, the world's largest manufacturer of dinghy sailboats, will continue to vigorously defend its rights and intellectual property around the world.

 

...the inference is that it more than just a trademark rights that are being infringed.

 

However, LP's right to distribute Kirby's sailboat in the various regions come from the agreement that LP has with Kirby. In addition to that, various holders of the Laser Trademark have rights.

 

What's most significant for LP is that it now have proof that they are indeed the valid holders of the Laser trademark for Belguim, The Netherlands and Luxenburg.

 

Finally, I see increasingly throughout NZ the use of non laser branded parts being used on Lasers, often being sourced over the internet. Ironic, that Infinity 'Laser' sails would not have been in breach under the LP action, unless they had the Laser logo on them.

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Sorry, I should have said trademark, not copyright. Tried to post quickly before going out!

 

Yes, I am saying that the only thing that really gives LP territorial rights are the trademarks. This case wasn't about Kirby sailboats but about misuse of the Laser and sunburst trademarks. If LP could have proven that PSA was in any way complicit in this breach, or in other words, PSA was trying to muscle in on their market, they would have joined PSA into this case.

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Sorry, I should have said trademark, not copyright. Tried to post quickly before going out!

 

Yes, I am saying that the only thing that really gives LP territorial rights are the trademarks. This case wasn't about Kirby sailboats but about misuse of the Laser and sunburst trademarks. If LP could have proven that PSA was in any way complicit in this breach, or in other words, PSA was trying to muscle in on their market, they would have joined PSA into this case.

 

So you are saying that the Builders agreements (which also give territorial rights) are not valid? Or are you only talking in terms of trademarks?

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I made no comment about the validity of the builders agreement. Consider this, for a moment. Why has BK named his version of the Kirby Dinghy the "Torch"? Simply because he cannot sell a boat called the "Laser" in certain territories without being in breach of trademark. The ownership of the trademarks won't change whoever wins the BKI/LP court case. Builders agreements aren't going to change that. This case is only about those trademarks and it seems to me that there was a clear breach of those trademarks.

 

Looking at the case further, I reiterate that IMO, this gives us zero WRT the main case we are interested in. We do not know where these parts came from - were they bought from a dealer or direct from PSA? We can be pretty certain that there is zero evidence that PSA was involved with shipping the stuff to Europe because they would have been enjoined in the case. All told, this case is a distraction.

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When you (SimonN) said "Yes, I am saying that the only thing that really gives LP territorial rights are the trademarks." I'm not so clear that is so as I'm thinking that the Builder's agreement gives LP territorial rights. By saying that that the trademarks are the only thing that gives territorial rights, you are saying that everything else, including the builders agreement do not. This is why I asked my two questions for clarification.

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The builders agreement is totally irrelevant in this case, which makes this whole discussion irrelevant. The bottom line is simple. Through trademark protection, LP can prevent anybody from selling Laser and/or sunburst logo products within their territory. That is all we need to know. I am saying that the only thing LP needs is trademark rights. Therefore, this case has zero implication for the other case between BKI and LP.

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Guys.

 

At no time was I trying to say that the builder's agreement was legally relevant to the trademark rights LP have case mentioned in the release from LP.

 

Historically, LP and their predecessors sought and gained trademark registration in the areas what they had a builders agreement to build. To me, the areas designated in the builders agreements are a fundamental part of them having trademark protection in the first place - mostly because it defines where. Further, what I was trying to say that LP made statements that went beyond the natural conclusions that their Trademark case was about. (Which they did). When Simon made a sweeping statement about an idea that territories can only be given by trademark, he may have had the context firmly in is mind of only talking about trademarks - it wasn't clear to me - so I asked. Otherwise the natural conclusion was that Simon thought that the builders agreements in Europe (Being a part of all other possibilities) were void. (If this does not make sense I am happy to explain further.) And, since Gouv has raised the question, I have read (and studied) Kirby's North American and European Builders Agreements from start to finish, but not the Builder's Manual - though don't believe the reading of either is a prerequisite to holding a valid opinion.

 

I want to draw attention to statements from LP like: "This manner of conduct should equally be a point of concern for the International Sailing Federation and the International Laser Class Association since it diverts attention from the development of the Class and Laser sailing." (Source = http://www.sailingscuttlebutt.com/2013/10/02/laserperformance-wins-trademark-infringement-lawsuit/).

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Gantt

 

I believe that a lot of your "statements" are incorrect. I cannot be bothered to go back through all this stuff, but I believe you are trying to make a connection between the Builders agreement and trademarks which simply aren't there. It is my belief that the trademarks were registered before any builders agreements were written. Or are you suggesting that BK and IB didn't bother with trademark registration for a number of years? That would make no sense. It is my belief that trademarks were transferred to builders at the time that the original builders agreements were signed, as part of the process. This has always been my contention about the moral side of the argument - BK gave up all his rights to the boat in exchange for a contract under which the builders paid him a sum of money for each boat built, in perpetuity.

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How convenient SimonN to not bother looking up a couple of very simple things. Oh well, I'll do it for you.

For Europe, the original trademark application was filed by Performance Sailcraft Europe Limited. (Source = Pam http://www.impropercourse.com/2012/05/kirby-sailboat-take-two.html)

 

My statement was (and is) "With the other hand, LP say that their territorial rights have been breached in Europe, yet a fundamental part of their having a territory is the same contract they said was no longer valid."

 

There was a definite connection between the builder's agreements and the trademark. Here's another connection: "that trademarks were transferred to builders at the time that the original builders agreements were signed, as part of the process." I agree with this.

Exactly how are any of my statements are incorrect??

 

SimonN's statement: "BK gave up all his rights to the boat in exchange for a contract under which the builders paid him a sum of money for each boat built, in perpetuity." is incorrect. The Kirby Sailboat was built under licence with a proper agreements. Contrary to the idea that Kirby gave up his rights, a lot of his rights only exist because of the agreements.

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Gannt,

 

I think SimonN is right on this point.

 

I believe my recollection from reading the docs is that the trade mark was originally established by Ian Bruce and his company. He also owned worldwide building rights. When IB-Laser had financial problems, the trade marks and tooling etc were eventually sold to regional trademark owners and the trademark owners signed the agreements with BKI that we now know as the "builders agreements". It was agreed that the trademark owners were de facto builders but the trademark owner could also choose the subcontract the building to another builder subject to the approval conditions in the builders agreements and the ISAF agreement.

 

The original builders agreements specified that that the builders were limited to certain defined regions. BUT as Simon points out the trademark owners owned the trademark independently of the builders agreement. They had bought and paid for the trademarks.

 

It seems to me that the nexus of the case is whether those builder agreements are still valid. They were originally term contracts which had expired. It is clear they were renewed for a second term. LP claims that they were given notice by BKI terminating one of the contracts. This would enable GS to build Lasers (without the trademark) for sale outside of their region and it would entitle LP to stop paying the fee on that contract to BKI. If LP argues that the contract has been terminated and thus GS is entitled to manufacture boats for the European market, then LP would not enjoin GS in the European case, they would simply seek an injunction and damages vs the distributer who was misappropriating the trademark to sell boats.

 

Simon is also right, that we are speculating on whether GS was involved in selling the boats to a European dealer. There are not wholesalers for Lasers so "grey imports" seems a little unlikely. The test will probably be whether GS "knew or should have known" that they were selling to a European buyer. But this is all speculation. I imagine there will be a lot of document discovery and depositions of those involved. This is not a turning point and may have little relevance . I guess that all I was pointing out was that if the European case has any relevance for the US Case, it's relevance is not favorable to GS/BKI.

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IPLore, I see your spelling hasn't improved.

 

I'm unclear exactly which point you think SimonN is right on. I think there are many.

 

However on the matter that the Trademark is completely independent of the builders agreement - crucially there is a difference of position we seem to have taken. Yes there some independence, but "completely independent". I can understand that statement being made, though for the Laser one design yacht, that is definitely not the case.

 

Though lets consider for a moment that you guys are correct and there is complete independence: it's a remarkable coincidence that the Trademark and the builder's agreement pretty much cover the same territory. All I'm saying is that back in the late 1970s or early 1980s, if I wanted to become an official builder of Lasers, I'd first get a builder's agreement, then it would naturally follow that I would get the trademark rights / ownership. There is some independence, all I'm doing is recognizing the interdependence. Yes Ian Bruce was the original builder. Kirby and Bruce had an agreement, much like the one that is called the builders agreement of today. I'd say that there was a lot more cooperation between Kirby and Bruce when it became time to establish a builder in Europe, than the builder's agreement / Trademark registration was all about them covering their bases as best they could see how. And so it naturally followed that the builder (Ian Bruce's Performance Sailcraft Europe Limited) registered the trademark. The trademark registration reflects exactly this. Same pattern occurred for Oceania later with PSA.

 

IPLore, SimonN being right on many of his points does not in any way make me wrong. The only thing that I'm struggling with are these statements that the Trademark is 'everything', when clearly, it's not.

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BKI's claim for fees and royalties is based on a contract. This same contract also provided the other party (LP in this case) with exclusive rights to a territory. At the time, BKI was owned by Global Sailing (GS) which in turn owned PSA.

 

[snipped]

 

IPLore, are you sure that Global Sailing owned PSA?

 

Global Sailing Limited according to the Ministry of Business, Innovation and Employment is a NZ registered company which was formed 19 June 2008 and has two shareholders, both of whom reside in Auckland, NZ.

 

Performance Sailcraft PTY Ltd according to the Australian Securities & Investments Commission was first registered 17 June 1955, though under a different name.

 

I am very confident that GS has never owned PSA.

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Gantt

 

Yet again, I believe you are wrong. GS owns PSA. This has been covered many times. Do you think that BK sold his interests to somebody outside of the Laser family? This has been the whole debate. LP has been arguing that PSA was trying to take over the world through GS owning BK's rights.

 

Also, it isn't a coincidence that the builders agreements and the trademarks cover the same geography. In fact, it would be very strange if they didn't. When BK and IB divided up the world and got other builders involved, they ensured that they split up trademark and builders agreements so they each reflected the same territory. That's called common sense. You also need to be careful about y0our sources. We know for a fact that improper course is wrong in a number of things they say - for instance, look at who they say owns the European trademarks and then look at who brought the case. They are different companies, although we know they are all owned by the same person. I don't trust the improper course version of events at all (they even state forums as a source of knowledge).

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Respectfully SimonN, I am not wrong about this. LP/Rastegar are not claiming that PSA is owned by GS. Global Sailing shares owners with Performance Sailcraft. One company does not own the other as you and IPLore say. In fact, I'm not even sure that the ownership is identical. Wadams and Young own Global sailing. Wadams, Young and Spencer own Performance Sailcraft (NZ) Ltd, a different NZ company registered in NZ in 1973. Lasers were built in NZ for a while (I visited the factory in the 1980s), so Performance Sailcraft (NZ) Ltd was possibly related to that. I'm not sure who the shareholders are of PSA, other than it's widely reported as being the Spencer Family.

 

On the second point, you are completely right in saying: "When BK and IB divided up the world and got other builders involved, they ensured that they split up trademark and builders agreements so they each reflected the same territory." I was completely wrong when I said the something similar. Funny how it's now BK and IB divided up the world. I always thought it was pretty much BK on his own - which is why its name on the contracts, and why Ian Bruce paid royalties to BK. The owner of the Laser Trademark in Europe is Velum Limited. Look it up here: http://oami.europa.eu. Pam has it right with regards to the ownership of the Trademark of Laser.

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Gantt

 

You are being pedantic and its pointless having a conversation with you like that. GS and PSA are controlled by the same family. That's all that matters.

 

Pam is wrong. Her site states "EU - Performance Sailcraft Europe Limited originally filed and still holds LASER trademark". As you yourself points out, the trademark is owned by Velum Limited. Of course, you could accuse me of being just as pedantic as you, because we all know that LPE and Velum are controlled by the same person, but I was using this as evidence that Pam's site cannot be relied on for its accuracy.

 

BTW, you do know that Performance Sailcraft was IB's business. Giving it a bit more thought, I have a strong feeling that PSE was originally part of IB's business interests. I believe that when the world got divided up, IB sold PSE. IIRC, Tim Coventry, once President of the ILCA, bought it although maybe Tim bought it at another point in time but I am pretty certain Tim owned it at some point. And as I said before, I think there was some family tie involved, possibly with Tim.

 

I just checked. Tim took over PSE in 1983. How time flies. I remember having a beer with him just after it happened. So, does 1983 tie in with any dates regarding the first builders agreement?

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The first US LASER trademark application filing date is in 1974 and registered in 1976.

The first EU (CTM) LASER trademark application filing date is in 1996 and registered in 2000.

The first AU LASER trademark application filing date is in 1986 but it never registered and the application lapsed and was re-filed in 1994 and did not register until 1996.

 

Easily verified facts available for free online. So when were the builder agreements signed?

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So when I'm right I'm being pedantic? Thanks SimonN for conceding. This is blown out of proportion. Global Sailing never owned PSA. Yes I did know Ian Bruce's business was called Performance Sailcraft. An existing business was renamed to form Performance Sailcraft Australia. A new business was formed in NZ called Performance SailCraft NZ Limited. Lasers are no longer built in New Zealand, our new ones come from Australia.

 

Thanks FlyFishSer for the dates, in every instance, the builder's agreement pre-date the trademark application filing dates.

 

Builder's agreement dates

North America - 1969(?) The original builder's agreement was between Bruce Kirby and Ian Bruce. I'm unsure when Ian started to pay Bruce royalties, but would think it was very early 1970s. July 11, 1983 marks the sign date of the builder's agreement in the dispute.

Europe - March 31, 1989 (Unsure when building commenced in Europe).

Oceania - Prior to December 1985 (I bought a brand new, locally built boat in December 1985, so I guess sometime before then.)

 

So what happened was that builder's agreement was set up by/with Kirby in each region, then sometime later the trademark was registered.

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So when I'm right I'm being pedantic? Thanks SimonN for conceding. This is blown out of proportion. Global Sailing never owned PSA. Yes I did know Ian Bruce's business was called Performance Sailcraft. An existing business was renamed to form Performance Sailcraft Australia. A new business was formed in NZ called Performance SailCraft NZ Limited. Lasers are no longer built in New Zealand, our new ones come from Australia.

 

Thanks FlyFishSer for the dates, in every instance, the builder's agreement pre-date the trademark application filing dates.

 

Builder's agreement dates

North America - 1969(?) The original builder's agreement was between Bruce Kirby and Ian Bruce. I'm unsure when Ian started to pay Bruce royalties, but would think it was very early 1970s. July 11, 1983 marks the sign date of the builder's agreement in the dispute.

Europe - March 31, 1989 (Unsure when building commenced in Europe).

Oceania - Prior to December 1985 (I bought a brand new, locally built boat in December 1985, so I guess sometime before then.)

 

So what happened was that builder's agreement was set up by/with Kirby in each region, then sometime later the trademark was registered.

I think more homework is needed. I know that Tim Coventry took over PSE in 1983 and they were building Lasers in the UK and supplying Europe. My guess is that it coincided with July 11! And I simply do not believe that there was no trademark protection in place at the time. The dates that the builders agreements were signed has, IMO, little relevance, because we don't know what preceded them. For instance, how were boats built in the UK by PSE without a builders agreement?

 

I might be wrong, but I have a feeling that the 1989 agreement might coincide with a change of name of PSE.

 

Anyway, enough for now. None of this makes any difference to the case between BKI and LPE, because it isn't a dispute over trademarks but only about the builders agreement. I think I will wait for some meaningful action in the case.

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[the court] found Optiteam and Nautisch Centerum Delfzijl guilty of trademark infringement, ordered the defendants to immediately cease infringing and fined them for procedural expenses.

 

 

Also seems to be irrelevant in regard to Kirby vs LP et al.

 

The possible legal relevance is this;

 

BKI's claim for fees and royalties is based on a contract. This same contract also provided the other party (LP in this case) with exclusive rights to a territory. At the time, BKI was owned by Global Sailing (GS) which in turn owned PSA.

 

LP's counter claim asserts that GS terminated the contract in writing.

 

If GS/BKI/PSA sold boats to dealers in a territory that was previously the exclusive territory of LP

(I) This may be evidence to support the claim that GS considered that the contract had been terminated.

(II) It could provide LP with the equitable defense of estoppel under the "unclean hands" doctrine for any equitable remedy that BKI seeks. (They are seeking to enforce a contract which they have breached)

(III) It adds to the tapestry of evidence suggesting that GS had been trying to increase its territory and may have acquired BKI for that purpose.

 

 

It is certainly not helpful to BKI/GS. On the other hand, I doubt it is a "turning point" in the case. Without ADR, this is going to drag on for a long time.

This is dubious - If Party X and Y have a contract that has mutually binding obligations, if Party X violates some of those obligations, that does not mean that Party Y can assume the contract is null and void and thus stop performing on its obligations.

 

The best example of this is a rental contract. If your landlord fails to fix a problem you have say with lack of heat, you do not have the right to stop paying your rent without a court order allowing you to do this (unless your contract has some other clause in it). your SOLE recourse is to sue the landlord.

 

Same with Rastegar. EVEN iF Global Sailing, and Bruce Kirby and PSA started selling Laser's across the street from the Laser Performance factory in the UK, LP could not assume that the contract was no longer valid, their sole recourse would be to sue those in violation of such agreements. Rastegar knows this because that's essentially the game he played with his stroller business when it got sued.

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This is dubious - If Party X and Y have a contract that has mutually binding obligations, if Party X violates some of those obligations, that does not mean that Party Y can assume the contract is null and void and thus stop performing on its obligations.

 

 

 

 

 

 

 

 

Hello Baltic, There are several circumstances where the failure to deliver consideration by one party releases the other party from their contractual obligations. But, this is not what is claimed in this case. LP claims that GS sent notice and terminated the contract.

 

LP claims that GS terminated the contract, thus LP's is released from their obligation to pay fees, and GP and associated companies are free to sell boats in LP's territory subject to trademark restrictions.

 

It is merely worth noting that LP sued Optiteam and NCD for trademark infringement and did NOT sue GS/PSA for breach of the builders agreement. This is probably because LP claims that the builders agreement has been terminated.

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So when I'm right I'm being pedantic? Thanks SimonN for conceding. This is blown out of proportion. Global Sailing never owned PSA. Yes I did know Ian Bruce's business was called Performance Sailcraft. An existing business was renamed to form Performance Sailcraft Australia. A new business was formed in NZ called Performance SailCraft NZ Limited. Lasers are no longer built in New Zealand, our new ones come from Australia.

 

Thanks FlyFishSer for the dates, in every instance, the builder's agreement pre-date the trademark application filing dates.

 

Builder's agreement dates

North America - 1969(?) The original builder's agreement was between Bruce Kirby and Ian Bruce. I'm unsure when Ian started to pay Bruce royalties, but would think it was very early 1970s. July 11, 1983 marks the sign date of the builder's agreement in the dispute.

Europe - March 31, 1989 (Unsure when building commenced in Europe).

Oceania - Prior to December 1985 (I bought a brand new, locally built boat in December 1985, so I guess sometime before then.)

 

So what happened was that builder's agreement was set up by/with Kirby in each region, then sometime later the trademark was registered.

I think more homework is needed. I know that Tim Coventry took over PSE in 1983 and they were building Lasers in the UK and supplying Europe. My guess is that it coincided with July 11! And I simply do not believe that there was no trademark protection in place at the time. The dates that the builders agreements were signed has, IMO, little relevance, because we don't know what preceded them. For instance, how were boats built in the UK by PSE without a builders agreement?

 

I might be wrong, but I have a feeling that the 1989 agreement might coincide with a change of name of PSE.

 

Anyway, enough for now. None of this makes any difference to the case between BKI and LPE, because it isn't a dispute over trademarks but only about the builders agreement. I think I will wait for some meaningful action in the case.

 

Simon is correct that this discussion about how and when the trademarks were filed in each territory is largely fruitless. The fact is that the trademarks are filed. (Altho BKI is challenging one of the trademarks). This case revolves around the builders agreement. BK claims that LP unilaterally stopped paying consideration. LP claims that GS/BKI sent notice to terminate the agreement.

 

Simon is also right, that time and discovery will reveal more.

 

In the meantime, IMO the case is becoming increasingly marginal to most Laser sailors. The boats are still available (Thanks to the perspicacity of the ILCA). The future growth or decline of the Laser class does not depend on the outcome of this case. It depends on Laser sailors themselves and the Class Association and folks like Gouv, hosting great regattas and persuading friends to go sailing.

 

Everybody would be better off if the parties resolved their differences thru ADR, but if the parties want to continue to spend their money on legal fees then the least that lawyers (professional or armchair) can do is go out and buy a Laser!

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This case revolves around the builders agreement. BK claims that LP unilaterally stopped paying consideration. LP claims that GS/BKI sent notice to terminate the agreement.

This has always been the bit I have found funny. BK/GS claim that the notice of termination was sent because of failure by LP to perform under the contract, and in turn, LP are using that termination as justification for failure to perform under the contract! It's going to be an interesting one, but my bet is that this will never reach court. I think this is just another of Rastegar's games we have seen with his other business ventures. My suspicion is that this will be dragged on as long as possible and finally LP will come to the table (remember it was them who, despite claims otherwise, broke off direct negotiations with BK, although one might consider BK's attempts to broker face to face negotiations between all parties as rather naïve). The longer this goes on and the more money that LP would potentially owe BK, the more it will play into LP's hands when it comes to a settlement. They will be able to offer a substantial sum, no doubt far less than what is actually owed but one that an elderly man such as BK will find hard to say no to, knowing that the alternative is likely to be a drawn out court case with appeals and more, followed by the potential of a proven Rastegar move, namely folding the company! The longer this goes on, the more profitable this dispute is likely to be for LP.

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This is dubious - If Party X and Y have a contract that has mutually binding obligations, if Party X violates some of those obligations, that does not mean that Party Y can assume the contract is null and void and thus stop performing on its obligations.

 

 

 

 

 

 

 

 

Hello Baltic, There are several circumstances where the failure to deliver consideration by one party releases the other party from their contractual obligations. But, this is not what is claimed in this case. LP claims that GS sent notice and terminated the contract.

 

LP claims that GS terminated the contract, thus LP's is released from their obligation to pay fees, and GP and associated companies are free to sell boats in LP's territory subject to trademark restrictions.

 

It is merely worth noting that LP sued Optiteam and NCD for trademark infringement and did NOT sue GS/PSA for breach of the builders agreement. This is probably because LP claims that the builders agreement has been terminated.

But then under that Contract LP was responsible for returning the molds and the Builder's Manual... Why didn't they?

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This is dubious - If Party X and Y have a contract that has mutually binding obligations, if Party X violates some of those obligations, that does not mean that Party Y can assume the contract is null and void and thus stop performing on its obligations.

 

 

 

 

 

 

 

 

Hello Baltic, There are several circumstances where the failure to deliver consideration by one party releases the other party from their contractual obligations. But, this is not what is claimed in this case. LP claims that GS sent notice and terminated the contract.

 

LP claims that GS terminated the contract, thus LP's is released from their obligation to pay fees, and GP and associated companies are free to sell boats in LP's territory subject to trademark restrictions.

 

It is merely worth noting that LP sued Optiteam and NCD for trademark infringement and did NOT sue GS/PSA for breach of the builders agreement. This is probably because LP claims that the builders agreement has been terminated.

But then under that Contract LP was responsible for returning the molds and the Builder's Manual... Why didn't they?

 

I have no interest in taking any sides between GS and LP. I was merely pointing out why LP may not have enjoined GS/PSA in the Optiteam case.

 

My recollection of the builders agreement is that the builder owns the mold and the builders manual , and that BK has the right to purchase the tooling at a FMV up to "replacement cost" . One doubts than a reasonable replacement value offer will be refused. I don't think they just give them to BKI.

However, upon termination they also agreed that the builder shall cease production....and LP clearly doesn't think that provision applies to them

 

At the end of the day, it was a poor decision to sell BKI to GS. But unfortunately, the clock cannot be turned back . Lets hope that it eventually gets resolved and that going fwd the Class has more control over its own destiny.

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Excellent, I'm really glad we have cleared up the matter!

Moving forward, I draw everyone's attention to the release by LP. It would appear that LP are overstating the importance of the Trademark win in an Atwerp court against an importer and retailer.

[snipped]
"LaserPerformance is pleased with the outcome and grateful to the Court for recognizing the blatant attempt to illegally import and distribute illegal Australian Laser products into Europe. LaserPerformance, the world's largest manufacturer of dinghy sailboats, will continue to vigorously defend its rights and intellectual property around the world.

This manner of conduct should equally be a point of concern for the International Sailing Federation and the International Laser Class Association since it diverts attention from the development of the Class and Laser sailing."

Source = http://www.sailingscuttlebutt.com/2013/10/02/laserperformance-wins-trademark-infringement-lawsuit/

 

This win will be seen as important to Rastegar et al as it will lend support to one or more of their counterclaims.

 

 

 

So when I'm right I'm being pedantic? Thanks SimonN for conceding. This is blown out of proportion. Global Sailing never owned PSA. Yes I did know Ian Bruce's business was called Performance Sailcraft. An existing business was renamed to form Performance Sailcraft Australia. A new business was formed in NZ called Performance SailCraft NZ Limited. Lasers are no longer built in New Zealand, our new ones come from Australia.

 

Thanks FlyFishSer for the dates, in every instance, the builder's agreement pre-date the trademark application filing dates.

 

Builder's agreement dates

North America - 1969(?) The original builder's agreement was between Bruce Kirby and Ian Bruce. I'm unsure when Ian started to pay Bruce royalties, but would think it was very early 1970s. July 11, 1983 marks the sign date of the builder's agreement in the dispute.

Europe - March 31, 1989 (Unsure when building commenced in Europe).

Oceania - Prior to December 1985 (I bought a brand new, locally built boat in December 1985, so I guess sometime before then.)

 

So what happened was that builder's agreement was set up by/with Kirby in each region, then sometime later the trademark was registered.

I think more homework is needed. I know that Tim Coventry took over PSE in 1983 and they were building Lasers in the UK and supplying Europe. My guess is that it coincided with July 11! And I simply do not believe that there was no trademark protection in place at the time. The dates that the builders agreements were signed has, IMO, little relevance, because we don't know what preceded them. For instance, how were boats built in the UK by PSE without a builders agreement?

 

I might be wrong, but I have a feeling that the 1989 agreement might coincide with a change of name of PSE.

 

Anyway, enough for now. None of this makes any difference to the case between BKI and LPE, because it isn't a dispute over trademarks but only about the builders agreement. I think I will wait for some meaningful action in the case.

 

No more homework is needed. The first builder's agreement was between Bruce Kirby and Ian Bruce around 1970. The Trademarking of Laser followed in 1983. Building commenced in Europe with the builder's agreement signed in 1989, the Trademark was registered in 1996. Building in New Zealand began prior to the end of 1985. Application for the regional was 1986 but it never registered and the application lapsed and was re-filed in 1994 and did not register until 1996. (Credit to FlyFishSer for the legwork for the Trademark dates).

 

The dispute is not just over the builder's agreements. There is the matter of the ISAF agreement and the issuing of plaques, the 'Bruce Kirby' trademark and counterclaims that directly involve the Laser Trademark. For those wanting more information then I suggest they read the claims and counterclaims where it's plain to see.

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No more homework is needed. The first builder's agreement was between Bruce Kirby and Ian Bruce around 1970. The Trademarking of Laser followed in 1983. Building commenced in Europe with the builder's agreement signed in 1989, the Trademark was registered in 1996. Building in New Zealand began prior to the end of 1985. Application for the regional was 1986 but it never registered and the application lapsed and was re-filed in 1994 and did not register until 1996. (Credit to FlyFishSer for the legwork for the Trademark dates).

 

The dispute is not just over the builder's agreements. There is the matter of the ISAF agreement and the issuing of plaques, the 'Bruce Kirby' trademark and counterclaims that directly involve the Laser Trademark. For those wanting more information then I suggest they read the claims and counterclaims where it's plain to see.

You seem so confident of your information, but I know for a fact that some of it is wrong. Building in Europe did not commence in 1989. I have already pointed that out above. Or maybe the Lasers I saw being built were just a figment of my imagination..........

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So building commenced earlier in Europe? I can believe that, and apologise for the error that I made. I should have written "sometime prior to 1989". If I have made any other errors, please let me know, I don't like making them!

Again, no more 'homework is needed' for the the original point I made, which hinged on the fact that the builders agreements pre-dated the trademarks. The trademarks were designed for the regions already designated for builders. It didn't happen the other way around, or at the same time. The builders agreements were instrumental in the setting up of the trademarks, which were related.

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Yet again, you need to do more homework! I am telling you that in the UK, there was trademark protection prior to 1996. I don't know where it came from, but I do know that in the early 1990's. LPE used that protection in a situation I am aware of. Where did that trademark protection come from? I can also tell you that there is no way that the Laser would have been selected for the Olympics unless all the trademark stuff was already tied up, and it was selected prior to 1996. Having been involved with 2 rounds of Olympic class selection, I can tell you that ISAF is pretty hot on this sort of thing. They cannot select a class only to find themselves caught up in a trademark problem. My guess would be that there was some world wide protection in place from fairly early days and that the registrations you refer to are more about sorting out territories and ownership.

 

I am absolutely certain that you don't have the full story but you keep posting as if you do. Almost very post you have made over the last few days has factual inaccuracies, so why should we believe the rest when the evidence suggests otherwise Frankly, I don't really care, because, thankfully, you aren't involved with the case so it won't be decided on incorrect information.

 

You even get the legal issues muddled. BK has made no counter claim over the Laser trademarks in any of his law suits. He has challenged the validity of certain trademarks through their registration, but that is a very different thing. Anyway, enough of arguing with you, because it is really pointless.

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Prior to 1996, the only Laser trademark registration that I am aware of was in US. I have worked in marketing for over 20 years and am familiar with trademark registration. It's possible that the US registration can be used in Europe, it has before. The Madrid agreement springs to mind as a mechanism by which a US registered trademark can be used in Europe.

 

I agree that BK did not make a counterclaim over the Laser Trademarks, again you are mistaken SimonN, I never claimed he did.

Rastegar et al raised Trademark issues in their countering document. Here it is:

 

43. Also in 2012, and in furtherance of the conspiracy to interfere with the business relations of LaserPerformance and Quarter Moon, PSA and Global Sailing commenced a series of predatory and unauthorized sales of Australian-built Lasers into territories in South America, Europe and Asia in violation of the LASER trademark licenses held by LaserPerformance and Quarter Moon.

 

You do seem very angry for some reason, and while I don't mind you making personal attacks against me, it does seem to be getting in the way of your objectivity. I can understand your being frustrated, as each time you make an allegation against me, it appears to be you, not me who errs. It must be very frustrating to making these empty and pointless statements against me. You state that I have made factual inaccuracies, where are they? Can you back up what you are saying with me with facts??

 

I don't claim to have the full story, I haven't a clue why you think I do. Only a raving idiot would make this claim, and one peg down is someone who alleges another claims this...

If there are earlier trademark registrations, then please show us!

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UK LASER trademark -1973 for boats, 1975 for sails, 1990 for life jackets and clothing.

http://www.ipo.gov.uk/tmownerid/search?domain=1&id=126371&app=1&name=Velum&postcode=

 

Looks like it claims priority to a CA TM filed in 1973.

 

The later filed EU trademark is a CTM - Community Trademark that covers multiple EU countries.

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And that's why I get so pissed of with you. You state things as fact when you are so far from being right it isn't funny. So, yet again, having told you to oh away and do your homework because I knew you were wrong, you come back with statements that you are right. You need to start doing your own research and stop relying on people who obviously haven't been thorough enough.

 

So, just to be clear, the first UK trademark registrations pre-dated the builders agreements by a long way, just as I said.

 

From the start, your position and understanding has been suspect. What is a shame is that I believe your basic position on this is the same as mine. It's just that getting the story as wrong as you get it doesn't help the cause.

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Again, no more 'homework is needed' for the the original point I made, which hinged on the fact that the builders agreements pre-dated the trademarks. The trademarks were designed for the regions already designated for builders. It didn't happen the other way around, or at the same time.

 

 

For those wanting more information then I suggest they read the claims and counterclaims where it's plain to see.

 

The 1983 Builders agreement attached to BKI's claim states quite categorically that the trademark "Laser" for use in association with, inter alia, sailboats previously belonged to Performance Sailcraft Inc. Thence it went to the receiver Peat Marwick Limited who sold the trademark to 124561 Canada Inc..

 

Article 3.2 of the builders agreement states that builder (In this case Tim Coventry as described by Simon above) represents that they have already obtained a license to use the trademark for Laser from 124561 Canada for territories which include UK, Europe, and the Middle East .

 

According to the builders agreement itself , the trademarks predated the builders agreement.

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Yes, it would appear it's settled, the trademark was registered in the UK prior to boats being built there. I'm very happy to admit I was wrong (though I did qualify what I said by saying the earliest registration I am aware of, it was backed by the data at the European Trademark Office [OHIM] which when I completed the search these earlier registrations did not come up with what FlyFishSer has presented, plus was consistent with Pam's research. Despite this, I encouraged all to show the earlier registrations - BECAUSE I was not absolute about the dates!) It seems we have more information now as a result, which has exceeded Pam's earlier work on the matter.

 

So in UK, the Laser Trademark was registered prior to the commencement of building. When the building of Lasers commenced in Europe, the Trademark was expanded to cover the rest of the territory to match the builder's agreement - right? Of course in North America and Oceania, building commenced prior to the registration of trademarks. Right? Settled? Please, let's find agreement, Gouv wants to read his summer newsletter!

 

Regarding SimonN's personal attacks on me, I wonder if he would like to make any further comment on his earlier claims - that GS owned PSA, and that it's a dispute only about the builder's agreement, that I don't do my own research? I believe the position I hold in SimonN's mind is way off track - though the reality is far different.

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I'm very happy to admit I was wrong.

 

So in UK, the Laser Trademark was registered prior to the commencement of building. When the building of Lasers commenced in Europe, the Trademark was expanded to cover the rest of the territory to match the builder's agreement - right? Of course in North America and Oceania, building commenced prior to the registration of trademarks. Right? Settled? Please, let's find agreement, Gouv wants to read his summer newsletter!

 

Regarding SimonN's personal attacks on me, I wonder if he would like to make any further comment on his earlier claims - that GS owned PSA, and that it's a dispute only about the builder's agreement, that I don't do my own research? I believe the position I hold in SimonN's mind is way off track - though the reality is far different.

 

I don't presume to speak on behalf of Simon, but its hard to disagree with him that (a) PSA is an associated company of GS that for legal purposes shares common ownership with GS and b. The nexus of this case will revolve around the builders agreement.

Simon and I have reached different conclusions about the wisdom of ILCA allowing LP to continue building class legal Lasers until the case is resolved but at least we have based our conclusions on common facts.

 

I think everyone would agree with you that you do your "own research" and come up with conclusions, statements and facts that are uniquely your own.

 

FWIW, there were trademarks in Europe outside of the UK that predated the Builders agreement....but whether they came before or after the builders agreement is not a particularly relevant fact for this case.

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